Issue of consent is key in case of girl refusing chemo

Toronto health lawyer Lonny Rosen says the first question that has to be determined in the case of an 11-year-old girl who has refused chemotherapy in favour of Indigenous medicine to treat her cancer is whether she is capable of giving consent.

“The Health Care Consent Act, 1996, which applies to health-care treatment in Ontario, does not have an age of consent – it is capacity based,” he tells AdvocateDaily.com. “And that means that even a child can consent to her own treatment if she is able to understand the information that’s relevant to making a decision about the treatment and able to appreciate the reasonably foreseeable consequences of the decision or lack of decision.”

This piece of provincial legislation also provides that if a person is not capable of making a treatment decision, because she is not able to understand information relating to that decision or to appreciate the reasonably foreseeable consequences of the decision, then the person’s substitute decision-maker or SDM (usually the person’s parents when the person whose treatment is at issue is a child) must give or refuse consent on the person’s behalf, and must do so according to decision-making rules set out in the legislation. This requires the SDM to make decisions in accordance with a wish expressed by a person (but only if she was capable when expressing the wish), or to give or refuse consent in accordance with the person’s best interests.

There is, however, another piece of legislation at play in this case: the Child and Family Services Act, which provides that a Children’s Aid Society can take steps, including obtaining a protection order or temporary care order, if there’s a child in need of protection. And one of the grounds for being a child in need of protection is if the child requires medical treatment and the parents, or the person having charge of the child, does not provide, or refuses to give consent to that treatment.

In an interview with the online legal news service, Rosen speaks about the legal issues surrounding a New Credit First Nation family’s decision to let a young girl treat her cancer with Indigenous medicine rather than chemotherapy, which has prompted the intervention of Ontario children’s aid authorities, the National Postis reporting.

The child, who cannot be named because of the intervention of the provincial authorities, has asked to stop chemotherapy and has requested that her only treatment for the disease be a regimen of First Nations traditional medicines and treatments, says the newspaper.

Rosen, partner at Rosen Sunshine LLP, says in any case such as this one the health-care practitioner who is proposing the treatment has the duty to obtain consent, and therefore to determine whether he or she is capable of giving or refusing consent.

“If the child is under 16 and requires medical treatment to cure, prevent or alleviate physical harm or suffering and her parents aren’t providing consent to that medical treatment, then she meets the definition of a child in need of protection and that’s what gives the Children’s Aid Society authority to seek an order to apprehend or otherwise become involved in that child’s care,” he says.

There is some legal precedent in Canada for cases where parents have refused to allow potentially lifesaving medical intervention for their children for religious reasons. In those cases, authorities have been successful in removing the children or in intervening to consent to their treatment.

In 2007, the B.C. Women’s and Children’s Hospital in Vancouver arranged the seizure of four premature babies from a Jehovah’s Witness couple who had refused to allow blood transfusions to be given to the newborns, says the National Post.

Rosen points to a 2009 case in Manitoba that involved a 16-year-old girl who was of the Jehovah’s Witness faith and refused a blood transfusion. In that matter, the girl was apprehended by the local child and family services director as a child in need of protection, and consent was given on her behalf for a blood transfusion on the basis of her best interests. The Supreme Court of Canada held that the legislation that permitted the director of child and family services to give consent on her behalf was constitutional, and that the legislation struck an appropriate balance between autonomy and protection.

Rosen also notes there are additional issues at play with the case of the 11-year-old First Nations girl who has refused chemotherapy.

“What’s different in this case is that it isn’t a religious issue; it’s a native cultural heritage issue,” he says. “What’s similar is that treatment that is evidence based and is standard is being refused.”

Rosen says there are two regimes at play in cases such as these – one is the substitute decision-making regime and the other is the child-protection regime.

“Generally, if a person is capable of making the decision, then she gets to make that decision,” he says. “If she is not capable of making that decision, then her parents, as her highest-ranking substitute decision makers, would give or refuse consent on her behalf.

“The interesting thing is that although an individual can make a decision based on any factors they wish, including their values and beliefs, but if someone else is making the decision, they have to make a decision in accordance with a prior expressed capable wish or, if there is no such wish, in accordance with the person’s best interests.”

However, if the person is a child who is found to be in need of protection on the basis that she is under 16 and requires medical treatment to cure, prevent or alleviate physical harm or suffering, and her parents aren’t providing consent, then the children’s aid society is permitted to apprehend the child in order to provide consent to treatment on that basis.

Rosen says Ontario’s Child and Family Services Act provides that native heritage must be taken into account when considering a child’s best interests, but he says it remains to be seen how this will influence the outcome of this case.